Bench Memos

Feddie and Me

My article on incest here at NRO has occasioned a response by “Feddie” over at the blog Southern Appeal. Feddie says he doesn’t like the “tenor” of my criticism of Judge Manion, for whom he once clerked. But I vouched explicitly for the competence, honesty, and legal acumen of the good judge in the article itself, so I don’t know where that complaint comes from.

More to the point, Feddie and one of his readers take me to task for not acknowledging in my article that the Muth case was a review of a habeas corpus petition. It is true that I did not burden ordinary readers with a point so arcane, since it was entirely immaterial to the argument I was making. Readers uninterested in the nerdier aspects of federal appellate law can stop reading at this point.

In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA), which among other things attempted to rein in federal courts that had run too far in habeas corpus review of state criminal convictions. Judge Manion’s opinion read AEDPA as requiring the circuit court to consider whether the Lawrence ruling was to be applied retroactively, since Allen Muth had been convicted of the crime of incest, and had had all his appeals in Wisconsin courts, before Lawrence was decided in the summer of 2003. Manion and his colleagues held that because Lawrence announced a “new substantive rule” of constitutional law and not merely a new procedural holding that a state court could in good faith have dispensed with beforehand, it was “thus retroactive.” In short, Muth was held to have passed every hurdle in the way of unbridled adjudication on the constitutional merits that Congress legislated in AEDPA.

In the last analysis, this simply means that for Judge Manion, Lawrence was the relevant precedent for deciding Muth’s case, and “the ultimate question then” was “whether Muth is a beneficiary of the rule Lawrence announced,” no more and no less. All the business about this being a habeas case mattered in the end not at all, but was just a lengthy throat-clearing operation. The circuit panel went fully to the constitutional merits on this case, and its opinion on that score was what my article was about.

On another point, I’ll take this opportunity to thank Gerry Bradley for his kind words about the article.

Most Popular

Film & TV

Hillbilly Elegy: Ron Howard’s Inverted Mayberry

Hollywood knows two registers when it comes to the white working class (WWC): sentimentalizing and condescending. WWCs are either cute, neighborly, and folksy, or they constitute a tawdry, alien life form. There are 130 million WWCs in our country, and yet nobody in Hollywood has the slightest grasp of them. With ... Read More
Film & TV

Hillbilly Elegy: Ron Howard’s Inverted Mayberry

Hollywood knows two registers when it comes to the white working class (WWC): sentimentalizing and condescending. WWCs are either cute, neighborly, and folksy, or they constitute a tawdry, alien life form. There are 130 million WWCs in our country, and yet nobody in Hollywood has the slightest grasp of them. With ... Read More
Books

Jordan Peterson v. the Publishing Mob

Staff at Penguin Random House Canada have “confronted management” about the decision to publish Jordan Peterson’s book in an “emotional town hall,” Vice reports. Peterson’s Beyond Order: 12 More Rules for Life will be released in March 2021. Apparently, one “junior employee who is a member of the ... Read More
Books

Jordan Peterson v. the Publishing Mob

Staff at Penguin Random House Canada have “confronted management” about the decision to publish Jordan Peterson’s book in an “emotional town hall,” Vice reports. Peterson’s Beyond Order: 12 More Rules for Life will be released in March 2021. Apparently, one “junior employee who is a member of the ... Read More

The Rural Way

Almost every national Election Night reveals the same old red/blue map. The country geographically is a sea of red. The coasts and small areas along the southern border and around the Great Lakes remain blue atolls. Yet when the maps are recalibrated for population rather than area, the blue areas blow up, ... Read More

The Rural Way

Almost every national Election Night reveals the same old red/blue map. The country geographically is a sea of red. The coasts and small areas along the southern border and around the Great Lakes remain blue atolls. Yet when the maps are recalibrated for population rather than area, the blue areas blow up, ... Read More
Elections

To ‘Steal’ an Election

Dan has a good article on the homepage, the main point of which is that the system worked, since Trump’s efforts to reverse the election failed. Certainly I agree with him about that. But he also finds charges that Trump tried to “steal” the election “overheated.” Since I made such a claim myself, I ... Read More
Elections

To ‘Steal’ an Election

Dan has a good article on the homepage, the main point of which is that the system worked, since Trump’s efforts to reverse the election failed. Certainly I agree with him about that. But he also finds charges that Trump tried to “steal” the election “overheated.” Since I made such a claim myself, I ... Read More